The Supreme Court’s decision in ‘303 Creative’ will embolden anti-LGBTQ hate in Pennsylvania

Every June, the LGBTQ community and our allies come together to celebrate the remarkable evolution of our rights in the decades since the Stonewall Riots in New York City. This year, however, the LGBTQ community did not conclude Pride Month with celebrations, but rather with reactions to the U.S. Supreme Court’s decision in 303 Creative LLC v. Elenis.

In this case, the Supreme Court ruled that private businesses that offer certain services have a First Amendment right to refuse service to members of protected classes of people — in this case, LGBTQ people.

The Supreme Court’s decision represents a huge setback for equal protections for LGBTQ people and our rights across the nation.

Although the precise question presented before the Supreme Court was whether a website designer would be required to prepare a wedding website for a hypothetical LGBTQ couple despite her religious objections to same-sex marriage, the impacts of this decision will reverberate throughout the American economy as businesses may feel emboldened to more freely discriminate against LGBTQ people on the basis of the private religious beliefs of their owners or employees.

In other words, the impacts will extend to more than just wedding websites.

To LGBTQ Pennsylvanians, the latest ruling may feel like simply an extension of the recent backlash we’ve been experiencing.

In Pennsylvania, we have seen campaigns against transgender kids come to our local school boards, most prominently in Bucks County, where some districts have launched a crusade against all things LGBTQ-related. Whether banning Pride flags in classrooms, removing books containing LGBTQ content from school libraries, or censoring teachers for acknowledging the existence of LGBTQ people, opponents of equality have recently found new life in the commonwealth and will certainly be invigorated with new ideas spurred by this Supreme Court.

Unfortunately, our LGBTQ community remains vulnerable to this backlash.

The Pennsylvania Human Relations Act — which contains most of the antidiscrimination laws in our state and includes protections in housing and employment — prohibits discrimination against individuals because of their race, color, religious creed, ancestry, disability, age, sex, or national origin. But it does not specifically prohibit discrimination against people for sexual orientation and gender identity. (Although the Pennsylvania Human Relations Commission has previously interpreted the term “sex” to expand to protections for people on the basis of their sexual orientation and gender identity, the General Assembly has not yet amended the Human Relations Act to do so.)

Fortunately, legislation has been proposed to expand Pennsylvania’s antidiscrimination laws to protect LGBTQ people. Led by Philadelphia State Rep. Malcolm Kenyatta and Pittsburgh State Rep. Jessica Benham (along with State Reps. Dan Frankel, La’Tasha Mayes, Ismail Smith-Wade-El, and Greg Scott), the Pennsylvania Fairness Act (HB 300) would expand antidiscrimination laws to include protections for LGBTQ people in housing, employment, and public accommodations across the commonwealth. Although the legislation passed in the House of Representatives, the bill faces an uphill challenge in the Senate.

Until the Pennsylvania Fairness Act is enacted, Pennsylvania will remain the only state in the Northeast that does not expressly include protections for LGBTQ people in its antidiscrimination statutes.

This leaves LGBTQ Pennsylvanians vulnerable, particularly in the wake of the 303 Creative ruling.

Opponents of LGBTQ equality in Pennsylvania may feel emboldened by the decision and interpret it as a carte blanche to refuse service to LGBTQ people. Despite its broadside attack against our community, the Supreme Court’s conclusion was not that broad. Rather, the decision is limited to the provision of services that are “expressive” in nature, meaning that they convey the expressions and thoughts of the author or creator (think paintings or, apparently, a website design). Litigation will certainly arise soon as plaintiffs test the court’s limits about how far businesses can go to ostracize LGBTQ individuals from the public square.

It’s not just Pennsylvania where LGBTQ people remain vulnerable, as national politicians continue to flame an increasingly dangerous and violent culture war that paints the LGBTQ community as a group that doesn’t belong. Members and supporters of the LGBTQ community must remain vigilant against future political, legislative, and judicial attacks.

Our history is built on the backs of those who struggled before us in a time when it was unpopular for corporate or political interests to support the LGBTQ community. Their perseverance in the face of discrimination, bigotry, and, in many cases, violence has paved the way to a present in which we have the freedom to celebrate Pride, to marry the one we love, and to find dignity in our work without reprisal for bringing our whole selves to the workplace. We must continue these important fights for the generations that come next.

Kevin M. Levy and Andrew M. Slom are the chair and vice chair, respectively, of the Philadelphia LGBTQ Bar Association. Levy is a real estate attorney at Saul Ewing LLP, and Slom is the president and CEO of the Law Offices of Andrew M. Slom, Esq.